Cheshire West: the Supreme Court’s right hook


After a wait that – if one was being impertinent – might seem doubtfully compliant with the requirement of speed in Article 5(4) ECHR, the Supreme Court has now handed down its judgment in the conjoined cases of Cheshire West and P and Q.    The appeals were allowed unanimously in the case of Mr P, and by a majority of 4 to 3 in the cases of P and Q (or MIG and MEG).

The lead judgment was given by Lady Hale, with whom Lord Sumption agreed.  Lords Neuberger and Kerr expressly agreed with Lady Hale in their separate concurring judgments.  Lords Carnwath and Hodge gave a joint dissenting judgment in the cases of P and Q; they were, however, satisfied that Baker J had directed himself as to the correct legal principles in the case of Mr P (even if they might not have reached the same decision), so the decision of the Supreme Court was unanimous in relation to allowing the appeal on P’s behalf.  Lord Clarke also dissented in the case of P and Q, giving a separate judgment.  In total, therefore, there were four judgments for the majority in P and Q, albeit all of them state themselves to be in agreement with Lady Hale.

The problem

Rightly, perhaps the most famous summary of the definitional problem that has plagued the operation both of the DOLS regime and questions relating to deprivation of liberty more broadly can be found in the research conducted by South London and Maudsley NHS Foundation Trust, in which a series of real-life case examples were given to lawyers, psychiatrists, Independent Mental Capacity Advocates and Best-Interests Assessors. The upshot of the research was that there was little agreement in decision-making and “[e]ven the lawyers could not agree among themselves, although they were selected for their in-depth knowledge of the subject.”[1]

The ultimate question

The ultimate question before the Supreme Court was, in some ways, simple to pose: does liberty mean something different to an adult who is (for reasons of disability) unable to take advantage of it?  Or does liberty mean the same for all?   As Lady Hale put it (at paragraph 33):  “The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled.”

Lady Hale had no hesitation in holding that it was:

 “45. [.]  axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

46. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

Lord Kerr, who agreed with Lady Hale and Lord Neuberger (and who posed the ultimate question during the course of argument with considerable rhetorical force), noted that:

 “Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity” (paragraph 76).

Guidance from Strasbourg

By virtue of the fact (uniquely in any legislation that I know) Parliament by enacting s.64(5) MCA 2005[2] tied the operation of the DOLS regime not to a statutory definition of when it was to operate, but rather to a definition that required judges to seek to determine what, exactly, the European Court of Human Rights would consider constituted a deprivation of liberty.   Both s.64(5) MCA 2005 and the consequent requirement identified to seek to find clear guidance from Strasbourg gave rise to considerable discussion in the judgments.  Indeed, perhaps the main point of division between the majority and the minority was whether such guidance existed and, if did not, what the Supreme Court should do in consequence.

It was common ground that, as Lady Hale – rightly – noted after summarising the jurisprudence of the ECtHR:

 “32. The Strasbourg case law, therefore, is clear in some respects but not in others. The court has not so far dealt with a case combining the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to “normal” home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. The issue, of course, is whether that authorisation can continue indefinitely or whether there must be some periodic independent check upon whether the placements made are in the best interests of the people concerned.

The majority went on to find that it was possible to discern clear principles from the Strasbourg jurisprudence which were applicable to the circumstances of the cases before them.

The acid test

Lady Hale “entirely sympathised” with desire of Munby LJ to produce an acid test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required.    Asking herself what the particular features of their concrete situation on which focus is needed, she held that the:

The answer, as it seems to me, lies in those features which have consistently been regarded as ‘key’ in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned ‘was under continuous supervision and control and was not free to leave’ (para 91)” (paragraph 49)

Lady Hale found to be helpful the intervention of the National Autistic Society and Mind, in which they listed the factors which each of them has developed as indicators of when there is a deprivation of liberty.   As she noted:

Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach” (paragraph 50).

Lord Neuberger, in a separate judgment agreeing with Lady Hale, recognised the importance of having as much authoritative guidance as possible to decide whether the circumstances of a particular case involve a deprivation of liberty falling within article 5 or a restriction on liberty falling outside article 5.  As he noted (paragraph 60), “[w]hether a particular case involves deprivation or restriction must depend on the specific facts of that case, but that does not mean that there can be no focussed guidance. It is also true that, however clear the guidance, there will be cases where it will be difficult to decide which side of the line the facts fall, but that is not a reason for the courts not seeking to minimise the uncertainty. On the contrary.”

Lord Neuberger, who agreed with Lady Hale that the Strasbourg court decisions indicated that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement), went on to dissect the reasons advanced by Lords Carnwath and Hodge for distinguishing the facts of the cases before the Supreme Court from those Strasbourg cases in which those propositions had been repeated.   They identified four factors, and against each I give the reasons why Lord Neuberger disagreed with them:

(a)    the person concerned lacks capacity to decide upon her placement but has not evinced dissatisfaction with or objection to it.

As Lord Neuberger noted, this conclusion would mean “67… that, however confining the circumstances, they could not amount to a deprivation of liberty if the person concerned lacked the capacity to object. That cannot possibly be right. Alternatively, there would be a different test for those who were unable to object and those who could do so. That would be a recipe for uncertainty.

68. In addition, the notion that the absence of objection can justify what would otherwise amount to deprivation of liberty is contrary to principle. It is true, and indeed sensible, that a person’s consent (provided that it is freely and properly given) may serve to defeat a contention that she has been deprived of her liberty. However, it involves turning that principle on its head to say that the absence of objection will justify what would otherwise be a deprivation of liberty – save in those rare circumstances where the absence of objection can be said to amount to consent, as in Mihailovs v Latvia, paras 138-139.”  It would, further, to tend to undermine the universality of human rights to which Lady Hale referred.

(b)   the placement is in a small group or domestic setting which is as close as possible to “normal” home life;

As Lord Neuberger noted (at paragraph 71), “it is a fair point that the Strasbourg court has never had to consider a case where a person was confined to what may be described as an ordinary home. However, I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty.”

Lord Neuberger noted that, in the case of children living at home, what might otherwise be a deprivation of liberty would normally not give rise to an infringement of article 5 because it will have been imposed not by the state, but by virtue of what the Strasbourg court has called “the rights of the holder of parental authority.”  He noted, though, that it was fair to say that “while this point would apply to adoptive parents, I doubt that it would include foster parents (unless, perhaps, they had the benefit of a residence order). But in the great majority of cases of people other than young children living in ordinary domestic circumstances, the degree of supervision and control and the freedom to leave would take the situation out of article 5.4. And, where article 5.4 did apply, no doubt the benignly intimate circumstances of a domestic home would frequently help to render any deprivation of liberty easier to justify.”

(c)    a court authorised that placement for the best interests of the person concerned;

Lord Neuberger was not impressed:

The court’s involvement in cases such as those to which these appeals relate is not equivalent to that of a court sentencing a criminal to a specific term of imprisonment. It is deciding that the circumstances of an innocent and vulnerable person, suffering from disability, are such that there must be an interference with his liberty. If that interference would otherwise amount to a deprivation of liberty, I find it hard to understand why it should be otherwise simply because the court has approved it. The court’s approval will almost always justify the deprivation from its inception, but, again, it is hard to see why it should continue to justify it for a potentially unlimited future. The only reason which can be advanced to justify such a conclusion is, as I see it, based on the purpose of the interference with liberty which brings one back to the observations in the Grand Chamber referred to in para 8 above.

(d)   the regime is no more intrusive or confining than is required for the protection and well-being of the person concerned.

As Lord Neuberger noted (paragraph 66), ‘purpose’ was comprehensively rejected by Strasbourg in Austin and, more recently, Creanga v Romania (2012) 56 EHRR 361.

Lord Kerr agreed with Lady Hale and Lord Neuberger, concluding that:

87. … for the reasons given by Lady Hale, it is apparent that two central features of the current Strasbourg jurisprudence point clearly to the conclusion that there is a deprivation of liberty in these cases. These are that the question of whether there has been a deprivation is to be answered primarily by reference to an objective standard and that the subjective element of the test is confined to the issue of whether there has been a valid and effective consent to the restriction of liberty. I do not accept that this clear guidance can be substituted with an “ordinary usage” approach to the meaning of deprivation of liberty. If deprivation of liberty is to be judged principally as an objective condition, then MIG, MEG and P are unquestionably subject to such deprivation, no matter how their situation might be regarded by those “using ordinary language.”

The individual cases

Mr P

As summarised in the press summary prepared by the Supreme Court, P is an adult born with cerebral palsy and Down’s syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P.

Lady Hale found that Baker J had, in substance, applied the right test, derived from HL v United Kingdom, and his conclusion that “looked at overall, P is being deprived of his liberty” (para 60) should be restored (paragraph 51).

Lords Neuberger and Kerr did not address the specific facts of the case of Mr P, simply agreeing with Lady Hale.

Lords Carnwath and Hodge indicated that they considered that Baker J had directed himself correctly as to the law, and even if they might not have reached the same decision, agreed that Mr P’s appeal should be allowed.

P and Q (MIG and MEG)

As summarised in the press summary prepared by the Supreme Court, P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters’ best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal.

Lady Hale, considering their cases, held that:

54. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.”

Lady Hale noted that:

55. Several objections may be raised to the conclusion that both MIG and MEG are being deprived of their liberty. One is that neither could survive without this level of supervision and control: but that is to resurrect the comparison with other people sharing their disabilities and to deny them the same concept of liberty as everyone else. Another is that they are both content with their placements and have shown no desire to leave. If the “tacit acceptance” of the applicant was relevant in Mihailovs,[3] why should the same tacit acceptance of MIG and MEG not be relevant too?

Lady Hale distinguished Mihailovs because:

 “he had a level of de facto understanding which had enabled him to express his objections to his first placement. The Strasbourg court accepts that there are some people who are not capable of expressing a view either way and this is probably the case with both MIG and MEG. As HL 40 EHRR 761 shows, compliance is not enough. Another possible distinction is that, if either of them indicated that they wanted to leave, the evidence was that the local authority would look for another placement: in other words, they were at least free to express a desire to leave” (paragraph 55).

Lady Hale – rightly – held that none of these suggested distinctions were very satisfactory, however, as she went on:

 “56… Nor, in my view, should they be. It is very easy to focus upon the positive features of these placements for all three of the appellants. The local authorities who are responsible for them have no doubt done the best they could to make their lives as happy and fulfilled, as well as safe, as they possibly could be. But the purpose of article 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards which will secure that the legal justifications for the constraints which they are under are made out: in these cases, the law requires that they do indeed lack the capacity to decide for themselves where they should live and that the arrangements made for them are in their best interests. It is to set the cart before the horse to decide that because they do indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards. If P, MIG and MEG were under the same constraints in the sort of institution in which Mr Stanev was confined, we would have no difficulty in deciding that they had been deprived of their liberty. In the end, it is the constraints that matter.

Lady Hale concluded with an observation upon policy.   Because of the extreme vulnerability of people such as P, MIG and MEG, she believed that it was necessary to err on the side of caution in deciding what constitutes a deprivation of liberty in their case:

 “56.  They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.”

Lord Neuberger did not address the specific facts of the cases of MIG and MEG, simply agreeing with Lady Hale.

Lord Kerr in his separate concurring judgment was the only member of the majority to rely upon a comparator, in order to answer the question of whether MIG and MEG were deprived of their liberty:

 “77. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.

 78. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.

 79. Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.


What follows are my initial impressions of the judgment, and I reserve the right to add/amend to them as I have more time to reflect over the next few days.

I must resist the temptation too smugly to say ‘I was right,’ but I would modestly suggest that readers with time on their hands read this article for themselves.   I might also note that it was perhaps very prescient that the Joint Committee on Human Rights in its scrutiny of what became the Mental Health Act 2007 had this to say:

“86. We consider that deprivation of liberty is a less flexible and elusive concept than might be thought from the draft illustrative guidance…. Since we posed this question to the Government, Munby J has delivered judgment in JE and DE v Surrey County Council and EW, holding that the crucial issue in determining whether there is a deprivation of liberty is not so much whether the person’s freedom within the institutional setting is curtailed, but rather whether or not the person is free to leave. In this case DE, although lacking decision-making capacity, was clearly expressing his wish to be allowed to live with his wife, even though his wife could not cope without support from social services. In HL v United Kingdom although HL was not expressing a desire to leave, his carers wanted him to come home to live with them. Neither was free to leave. Both were deprived of their liberty. It is not necessary for all the elements identified in the list of factors contributing to a deprivation of liberty to be present. There will be a deprivation of liberty if it is known that a person is to be prevented from leaving the place where they are being taken to reside.”

The numbers

The cases of Mr P (in Cheshire West) and the sisters P and Q all present specific issues referable to their own, unique, circumstances – and it is always important to remember that none of them were (or could have been) the subject of authorisations granted under the DOLS regime.   However, it was very clear at all stages that the questions before the Supreme Court went to legal status of thousands of people in different settings (both inside and outside the scope of the DOLS regime).

It is perhaps worth reminding ourselves of what we had understood the numbers would be:

(1) The evidence before Strasbourg in HL v United Kingdom (the Bournewood case) from the Mental Health Act Commission was to the effect that, if Mr L was deprived of his liberty, then “there would be an additional 22,000 detained patients resident on any one day and an additional 48,000 compulsory admissions per year under the 1983 Act.”  This evidence did not, of course, take into account the position of people in care homes;

(2) In the Impact Assessment relating to the DOLS regime prepared in 2008, the Government:

 “remain[ed] of the view, on the basis of the legal advice it has received, that the number of people who lack capacity to consent to the arrangements made for their care or treatment, and who need to be deprived of their liberty in their best interests in hospitals (excluding people who are detained under the Mental Health Act 1983) or care homes, should be relatively small. In particular, the Government does not accept the view expressed by some respondents to the consultation that every person who lacks capacity to consent to the arrangements made for their care or treatment, and who is in a care home from which they are not allowed complete freedom of egress, are inevitably deprived of their liberty within the meaning of Article 5 of the ECHR” (paragraph 16);

(3) The Government at that time suggested that a total of 17,000 people in residential care might be the subject of a deprivation of liberty assessment in the first year of the DOLS regime, together with a further 4,000 in hospital, i.e. 21,000 in total.[4]   The Government envisaged more assessments being undertaken in the first year, with progressively fewer in subsequent years as all parties become familiar with the safeguards.  The Government anticipated that about 25% of applications would have an authorisation granted, and that this proportion would be fairly constant. This would have equated to around 5,000 authorisations being granted in 2009/10, falling to around 1,700 each year after 2015/16. The Government – rather ironically – also noted that “[c]are homes currently face difficult judgements about the point where restrictions needed for a person’s protection fall short of, or constitute, a deprivation of liberty. They will benefit from the clarity provided by a duly completed authorisation about the lawfulness of care to be provided” (paragraph 41);

Whilst the Government explained that it considered that the number of assessments would decrease as people become more familiar with the safeguards, the logical connection between familiarity with the safeguards and a reduction in the numbers of authorisation always seemed rather tenuous.  The assumptions made by the Government proved incorrect in a number of ways:

(1) Only 7,157 applications were made in the first year (with 536 people being subject to an authorisation on 30 June 2009);[5]

(2) The proportion of applications leading to authorisation being granted has always been much higher than the 25% predicted (in all years after 2009/10 being higher than 50%)

(3) The number of applications has continued to rise, to a grand total of 11,887 for the year 2012-3, of which 6,546 were granted;[6]

(4) A total of 1,575 people were subject to standard authorisations on 30 June 2013, having peaked at 1,976 on 31 December 2011.

The judgment of the Supreme Court makes it crystal clear that until and unless the DOLS regime is ripped up and begun again (as the House of Lords Select Committee strongly recommends):

(1)   authorisations in both care home and hospital settings will have to increase many-fold;

(2)   many applications will have to be made to the Court of Protection to authorise deprivations of liberty taking place in supported living placements and in home settings.

I would tentatively suggest that a real question – perhaps the real question – in the (re)evaluation of the situation of those who may now appear to be deprived of their liberty, is where support shades into supervision and control.


The majority strongly defended the importance of analysing correctly whether the person subjected to an objective deprivation of liberty validly consented to that deprivation, and that ‘absence of objection’ on the part of an incapacitated adult could not be equated with consent.   In this regard, it seems to me that the judgment of Baker J in LDV (the only domestic judgment to date that has grappled with the subjective element) remains good law, and an important pointer to the relevant factors both in relation to psychiatric hospitals and more broadly.  I would also note that I do not read the judgment as giving any support to the suggestion tentatively floated by the Scottish Law Commission based on a comment in Stanev that substituted consent could negate an objective deprivation of liberty.  It will be interesting to see what proposals the Scottish Law Commission produce in due course to plug the Bournewood gap in Scotland.

Overview and residual liberty

It is important to remember that even if we establish that someone is deprived of their liberty, and that deprivation is authorised (by a DOLS authorisation or court order), that is not the end of the story.

(1)   It is vital that there is proper independent scrutiny of the deprivation for purposes of Article 5(4) ECHR.     In MH v UK (handed down during the course of the hearing in Cheshire West, albeit not referred to in the judgment), the Strasbourg court emphasised the need for special procedural safeguards in order to protect the interests of persons who, on account of their mental disabilities, were not fully capable of acting for themselves.  The House of Lords Select Committee indicates just how shaky is the basis upon which we can properly contend that proper access to this independent scrutiny exists – especially in the case of DOLS authorisations.

(2)   In Munjaz v UK, Strasbourg confirmed that those deprived of their liberty pursuant to the appropriate procedures retain a degree of residual liberty, and that (for instance) a person subject to a DOLS authorisation who is then subject to further restraint might, depending upon the circumstances of that restraint, in fact be subject to an additional deprivation which would require authorisation (in such a case by virtue of a court order).

Where next?

By widening on any view so substantially the numbers of those who are to be considered to be deprived of their liberty (whether within or without the scope of the DOLS regime), the Supreme Court has delivered a right hook to follow up with the left jab delivered by the House of Lords Select Committee.  The Government really has no option, I would suggest, but to sit down to reconsider precisely how to draw up fresh legislation.  In so doing, I would very much hope that they take up Lady Hale’s suggestion that whatever replaces the DOLS safeguards is extended to cover, inter alia, supported living.   We now have a real opportunity to produce workable legislation that properly closes the Bournewood gap: having made such a hash of it first time around, we really have no excuse now.



[1] Published in Cairns et al, “Judgements about deprivation of liberty made by various professionals: comparison study,” The Psychiatrist, September 2011. The research is summarised (and the quotation above given) in the Discussion Paper upon Adults with Incapacity produced by the Scottish Law Commission in July 2012 at paragraph 4.30.

[2] Which provides that “[i]n this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention.”   This is very different to the provisions of s.2(1) HRA 1998, which provides that that when “determining a question which has arisen in connection with a Convention right,” the Courts must (inter alia) “take account of any judgment, declaration or advisory opinion of the European Court of Human Rights.”

[3] In which the ECtHR considered two successive care home placements.  In relation to the first, the court held that there was a deprivation of liberty, because although the applicant lacked legal capacity he subjectively perceived his compulsory admission there as such a deprivation (para 134). In relation to a later placement, however, he did not raise any objections or attempt to leave and the court concluded that he had “tacitly agreed” to stay there and thus had not been deprived of his liberty (paras 139, 140).

[4] This was based on an estimate that there were roughly 500,000 people in England and Wales who had a mental disorder and who lack capacity, including over 190,000 people with severe learning disabilities and about 230,000 older people with dementia living in institutions. This estimated number also included people who lack capacity for other reasons, such as acquired brain injury or mental health difficulties. A study undertaken by the Department of Health’s analysts in 2000 concluded that around 1 in 10 of that number- about 50,000 people -would require additional restrictions for their protection, including restrictions that would prevent them from leaving the facility, which in some cases may amount to a deprivation of liberty.

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4 Replies to “Cheshire West: the Supreme Court’s right hook

  1. I found a lot of this judgement very clear (and helpful), eg the emphasis on human rights being universal. I’m still a bit confused about the test for deprivation of liberty (although clearly lots more people will be deemed to be deprived of their liberty than has been the case so far): I read para 49 as meaning that, if the person was both under continuous supervision and control and not free to leave, then they are deprived of their liberty, but a colleague read it as meaning that they would be deprived of their liberty if they are either under continuous supervision and control or not free to leave (which would probably be more or less everyone who lacks capacity to consent to being there, which might be a good thing but would drastically change things!).
    What do others think?

  2. The decision in Cheshire West has been generally welcomed. I am afraid that I cannot join in the celebrations for the following reasons:

    1. The Court failed to grasp the nettle by providing some practical guidance on the meaning of a deprivation of liberty. What is the meaning of “continuous supervision and control” and “not free to leave”? On one interpretation, this could cover every person who is suffering from a significant degree of dementia or who has a profound learning disability.
    2. In my opinion, the C of A realised that the DoL regime could not cope with an expansive definition of a DoL, so they adopted a restrictive interpretation. The Supreme Court has now placed a gun to the head of the Government with an interpretation of a DoL which the system just cannot cope with (as Lady Hale indicated in her judgment). The problem with this is that there is little likelihood of legislation in the medium term.
    3. What will be the consequence of the ruling? It will either be largely ignored, which I think is a real possibility, or significant financial and human resources will have to be diverted from direct client care to making the DoL regime work. Neither is an attractive prospect.
    4. With regard to deprivations of liberty in domestic settings, the idea of the State authorising the DoL of a child who is being cared for appropriately by his or her parents in their home with professional support has Orwellian overtones. The decision of the majority could have a very negative effect on the attitude of carers to State intervention in their lives.

    Richard Jones

  3. A masterly summary as usual.

    What is the view on the problem of what it means to be “free to leave”?

    In HL v UK, JD v DE and Surrey CC, Storck v Germany, BB v AM, AM v SLAM, DD v Lithuania, Stanev v Bulkgaria (and many other cases) the lack of freedom to leave crystallised in a practical and forceful way at the point where there was an objection. This objection could either be from P herself or, as in the case of HL v UK, BB v AM and AM v SLAM, from another person who was asserting the right to remove P from the care of the state.

    It is probable, in terms of Mental Capacity Act compliant and other duties of care, that a large number of people lacking the mental capacity to make key decisions – such as how to safely cross a road – would not be free to leave a registered care home. They might be dissuaded or otherwise prevented from doing so at least without the support of a chaperone.

    The assertion that these people are not free to leave would however rarely be made except, maybe, as part of contingency care planning for the event that there was out of character behaviour in respect of an otherwise compliant patient. The freedom to leave would not crystallise in a practical way that engaged an argument, demanding resolution because of different perspectives, about competing rights and needs.

    The “fairy tale” that HL was free to leave hospital was told precisely because his foster carers asserted the right – and the need – to remove him. The “fairy tale” would not otherwise have been written. There is an issue here – should HL’s ability to challenge public authority decisions depend on the action of motivated others.

    But in Cheshire West it was not, as far as I can tell, suggested that P’s freedom to leave was crystallised through an objection to being accommodated in the service – either an objection by himself or an objection by anyone else. He would, of course, not have been free to leave if he had wanted to but the issue of freedom to leave never arose. It was rather the nature and the degree of the necessary restraint that prompted traditional questions about whether or not the regime had crossed the border from restraint in to deprivation of liberty.

    How then, following the Supreme Court judgment, is it possible to identify factors that shift the lack of freedom to leave from a generic and generally asserted presence in many cases to a significant factor to be considered in a specific case?

    Is it the case that what this judgment has done, in terms of the lived experience of patients, is to emphasise “continuous supervision and control” as a sufficient factor for finding that there is deprivation of liberty in the *absence* of crystallised lack of freedom to leave?

    If so is it the case that, additionally, the judgment has further defined continuous supervision and control as resting in the simple assertion of a right to accommodate P in a care home/accommodation service and to supervise P’s movements and care needs not necessarily on a literally hands on continuous basis?

    Is there a special case in terms of bodily integrity and Article 8 rights – that there are types of “restraint” and care that will or should result in a finding that Article 5 safeguards should be applied?

    This reminds me a bit of Phil Fennell’s argument about ECT and informal patients who lack the capacity to consent to ECT.

  4. In practical terms, is it really so troublesome that interpretation of this judgment suggests that many patients with a significant degree of dementia or a profound learning disability are effectively deprived of their liberty in residential care?

    It strikes me as almost analgous to establishing the existence of a breach of duty of care in negligence cases. The fact that a person is held to have been deprived of his or her liberty will not necessarily mean that the care provision should be altered. What is perhaps more pertinent is the implication that greater scrutiny will need to be given to decisions taken about capacity and best interests, as well as to the way in which safeguarding measures are determined and implemented. This very much echoes the concerns raised by the House of Lords in relation to understanding and use of the MCA generally.

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